International Law: The missing ingredient in U.S. foreign policy--PRELUDE
Policy Incoherence
United States foreign policy is characterized by a stunning policy incoherence, as it strives to counter Russian violations of international law in Ukraine including in particular its commission of war crimes and crimes against humanity on a massive scale, while it supports Israel and its commission of war crimes in Gaza on a massive scale.
To counter Russian aggression in Ukraine over the course of what is likely to be a long, drawn-out war, a war that could last for decades, the U.S. and the West need to secure the support of the many countries misleadingly grouped together as the “Global South”.
By its support of Israel in Gaza—and the massive war crimes evident for all to see, such as the early total blockade of the Gaza Strip cutting off food, water, electricity, and fuel, and the bombardment of civilian infrastructure leaving over 35,000 dead (the majority of whom were civilians, particularly women and children), the U.S. has manifested a hypocrisy and a double-standard which may well make it impossible to rally the countries of the Global South to join the sanctions regimes which alone might cripple the Russian economy.
Biden has lost the Global South.
This policy incoherence is the result of the absence of a critical ingredient in U.S. foreign policy: international law. It is more than an absent ingredient. It is more like an active disdain for international law.
This disdain is not new in U.S. foreign policy. 1 The invasion of Iraq in 2003 in flagrant violation of Article 2 paragraph 4 of the U.N. Charter prohibiting the international use of force marked the most recent veering away by the United States from the course of international law. Few remember that the U.S. played a leading role in the creation of the United Nations in 1945, or in the creation of the League of Nations in 1919. One of the key reasons for the ultimate rise of Adolf Hitler and the failure of the League, it should be remembered, was the refusal of the Republicans in the Senate to ratify the Covenant (Charter) of the League of Nations.
After 2001, the so-called “War on Terror” signaled increasing deviations from International Humanitarian Law, particularly in Afghanistan, as the U.S. adopted idiosyncratic interpretations of IHL (the law of war) not shared by most other countries.
Recent American support for Israel and its war in Gaza has drawn the U.S. even further from support for international law and towards Israel’s apparent disdain in practice for international law.2 The Israelis loudly proclaim that they act strictly in compliance with international humanitarian law, and indeed that they have the most moral soldiers in the world.3 Numerous reports by U.N. agencies and other institutions, however, suggest that this has not been the case in Gaza.4 In evaluating Israeli assertions, one should not only listen to what they say but also watch what they do.
International Law
If President Biden and the U.S. had appreciated the importance and usefulness of International Law, they might have taken the position that Israel must comply with International Law in general and International Humanitarian Law in particular in proceeding against Hamas in Gaza.
Indeed, U.S. law governing military assistance and sales provides that the assistance may only be used in compliance with the international law of self-defense and international humanitarian law.
President Biden and the U.S. might also have articulated their criticism of the Hamas attacks on Israel on October 7, 2023 in terms of International Humanitarian Law and the war crimes Hamas committed on that day and continues to commit each day as it holds the hostages.
They might have supported (though indirectly, since the U.S, is not a party to the Statute of the ICC and has not accepted its jurisdiction) the issuance of international arrest warrants for the head and leaders of Hamas.
To be sure, such action would largely foreclose the possibility of current U.S. efforts to persuade or intimidate the Chief Prosecutor of the ICC not to issue such warrants against Benjamin Netanyahu and other top Israeli leaders.5
If U.S. policy were based on compliance with International Humanitarian Law, it might have blunted criticism of the U.S. being anti-Israel or pro-Palestinian. Moreover, on student campuses such a focus might have done a lot to dampen the antisemitism that erupted basically as a reaction to Israeli attacks on civilians in Gaza. It might also have had a very positive educational impact on the student demonstrators. Universities should in any event educate their students about international law and how it works, and International Humanitarian Law in particular. Demonstrating in support of compliance with International Humanitarian Law could generate very broad support.
Such a policy based on upholding International Law, furthermore, would be completely consistent with U.S. policy opposing Russian aggression and crimes against humanity in Ukraine. While the countries of the Global South might well remain critical of the U.S. for its support of Israel, they would not be able to call out the hypocrisy and double-standard of the U.S. condemning Russia for its utter barbarism in committing war crimes and crimes against humanity in Ukraine, while in effect looking the other way as Israel commits war crimes in Gaza.
There are “costs” associated with a policy of appreciating international law and using it as a sword in conducting the foreign policy of the United States.
These will be addressed in a future article on “The inconvenient aspects of upholding international law.”
James Rowles is a former Lecturer on Law at Harvard Law School and professor of international law at other universities.
See, e.g., 1) Spencer Ackerman, “Where Is America’s ‘Rules-Based Order’ Now?,” New York Times, April 10, 2024.
See, e.g.,
1)James Rowles, ”Israel bombs Iranian consulate in Syria, in total disregard of international law,” Foreign Policy Decisions, April 1, 2024.
2)See Farnaz Fassihi, “U.N. General Assembly Adopts Resolution in Support of Palestinian Statehood; The vote comes after the United States last month vetoed a Security Council measure granting full U.N. membership to a Palestinian state,“ New York Times, May 10, 2024.
Fassihi recounts a recent incident which symbolized Israel’s current attitudes toward the U.N., the U.N. Charter, and international law including International Humanitarian Law. The Israel Ambassador to the U.N., Gilad Erdan, ostentatiously shredded a copy of the U.N. Charter while speaking at the podium prior to the vote on a General Assembly resolution supporting the granting of further rights to Palestine in the institution.
Erdan argued that those voting for the resolution were shredding the U.N. Charter. The stunt was of a piece of Israel’s unrelenting attacks on the United Nation. Most people saw Israel shredding the U.N. Charter. Few read the fine print that carefully qualified the main message in the video.
See, e.g., Nave Gordon, '“The myth of Israel’s ‘most moral army; Manipulating international law allows Israel to evade condemnation for its war crimes, “ Al Jazeera, October 16, 2023.
Neve Gordon is Professor of International Law at Queen Mary University of London
See, e.g.,
1)James Rowles, “Israel-Gaza Conflict: Is Israel complying with International Humanitarian Law?” Trenchant Observations, November 21, 2023.
See, e.g.,
1)Luis de Vega and Isabel Ferrer,”The Hague prosecutor denounces pressure on possible measures against Israeli leaders due to the Gaza war;; Karim Khan warns that threats of retaliation against the court may constitute ‘a punishable act’,” El Paîs, May 3, 2024 (1:35 pm EDT);
2) Matt Berg, “‘You have been warned’: GOP senators caution ICC over Israeli arrest warrants; Such actions are “illegitimate and lack legal basis,” the lawmakers wrote, warning they would result in severe sanctions against the ICC.,” Politico, May 6, 2024 (9:24AM EDT);
This tactic of attacking the prosecutors and the judges is reminiscent of Donald Trump’s attacks on judges and prosecutors in his trials in the U.S.